The 7th U.S. Circuit Court of Appeals in Chicago has rendered a ruling in Rumsfeld’s attempt to dismiss the case based on immunity. The court has rejected the argument and nobody should be surprised that torture apologist David Rivkin is firing back by insulting the judges themselves. “Having judges second-guess the decisions made by the armed forces halfway around the world is no way to wage a war. It saps the effectiveness of the military, puts American soldiers at risk, and shackles federal officials who have a constitutional duty to protect America.”

Second, we agree with the district court that Secretary Rumsfeld is not entitled to qualified immunity on the pleadings. The law was clearly established in 2006 that the treatment plaintiffs have alleged was unconstitutional. No reasonable public official could have believed otherwise.

The plaintiff in this case is filed as John Doe. John Doe was sent to Iraq in as an Arabic-English interpreter with a marine corp’s intel unit in December 2004. In less than a year he was arrested without charge and thrown in solitary confinement blindfolded and handcuffed. He was in solitary for 72 hours then transported to Camp Cropper before being tortured some more. He was released 9 months later. He filed suit in 2008.

Rumsfeld is accused of approving torture methods that included sleep deprivation, walling, extended standing, and other violations of Army Field Manual, domestic law, and foreign treaties regarding the treatment of prisoners. The expressed outrage by officials days into the Iraq war about the treatment of captured chopper pilots shows they had a low bar for tolerance in abuse of American prisoners of war but no compunction for the abuses we know happened. Repeatedly, they’ve used the ‘bad apples’ spin.

These suits work to destroy the bad apples narrative. Attorney Mike Kanovitz said, the court had to choose between “protecting the most fundamental rights of American citizens in the difficult context of a war or leaving those rights solely in the hands of politicians and the military. It was not an easy choice for the Court to make, but it was the brave and right choice.”

The state department hasn’t responded but torture apologist and broken message maker David Rivkin resumed his same old attacks and claimed the decision would be overturned.

We’ll keep you posted on Donald Rumsfeld and his torture apologist attorney, David Rivkin.

Is Rumsfeld Losing His Mojo?
Facing persistent enemy attacks in Iraq, the Defense Secretary now finds himself fighting battles at home
By MICHAEL DUFFY AND DOUGLAS WALLER

Sunday, Oct. 26, 2003
Defense Secretary Donald Rumsfeld was having one of his irregular chats with Senators last Wednesday, speaking in the secret, soundproof fourth-floor Capitol chamber used for highly classified conversations, when someone interjected the question that was on everyone’s mind. “What troop levels do we expect to have in Iraq a year from now?” asked Senator Bill Frist, the Republican leader. And with that, the Pentagon chief began to tap dance. His reply, according to a Republican Senator in the room, was a classic Rumsfeldian fugue—complete with interesting hand gestures—mentioning reductions and foreign troops and steady progress. Or, as the G.O.P. Senator described it later, “it was a five-minute, total nonanswer, just unbelievably obtuse.” Another Republican Senator put it this way to TIME: “Rumsfeld believes in his own magic.”

It is increasingly fair to ask: Does anyone else? For nearly three years as Defense Secretary, Rumsfeld has employed everything from smiling charm to podium-pounding bluntness in his battles with Congress, the Pentagon bureaucracy and his colleagues in the Bush Administration over who controls foreign policy. But his recent pronouncements, both public and private, have grown into a regular political distraction for a President who is already on the defensive for his handling of the Iraq war and its aftermath—both of which were designed largely by Rumsfeld himself.

Rumsfeld has lately kept busy strewing political wreckage on both ends of Pennsylvania Avenue. First, he wrote a frank memo about the war on terrorism that was at odds with much of the Administration’s public spin for the past several months. Then he alienated the one person, apart from Bush, on whom the Pentagon most relies for sustenance—Virginia Senator John Warner, chairman of the Senate Armed Services Committee. A former Navy Secretary, Warner went to the Senate floor to complain that Rumsfeld had in effect ignored his request for an investigation into Lieut. General William “Jerry” Boykin, a top Army officer in the war on terrorism, who had been preaching anti-Islamic sermons, in uniform, to evangelical Christian gatherings. When Rumsfeld denied ever seeing Warner’s letter—something of a stretch, as Warner not only faxed the letter to Rumsfeld’s office but also had it hand-delivered by Pentagon courier—lawmakers took the gloves off. “His treatment of the chairman of the Armed Services Committee is more disdainful than I have ever seen,” said Republican Senator John McCain. “It’s just not appropriate.”

Warner and Rumsfeld tried to patch things up later over sandwiches at Rumsfeld’s office. But what’s really eating Republicans isn’t just Rumsfeld’s manners; it’s his war. It was Rumsfeld who ordered his reluctant generals to keep the U.S. invasion force relatively small last winter in order to shorten the war—though that has left the U.S. with what many believe is an occupying army too small to pacify, disarm and rebuild the fractured Iraqi nation. Five Americans died in combat last week, and the Baghdad hotel where Rumsfeld’s deputy, Paul Wolfowitz, was staying came under attack by rocket fire (he was uninjured). And it is ever more clear that one ramification of Rumsfeld’s win-it-fast design is that the President will be spending more time than he had planned to in the run-up to his re-election campaign convincing Americans that the wars in Iraq and Afghanistan are truly finished. Domestic initiatives are being squeezed out of the Bush script by the duration and cost of the two overseas rebuilding efforts.

You can’t understand what Rumsfeld is up to now unless you can picture the wringer he has just been through. Many lawmakers returned from summer vacation lugging complaints from voters about the mess in Iraq. Bush’s polls began to fall, and to halt the slide, the White House ran to the U.N., ostensibly to get help with troops and money but really to calm political anxieties at home. When that effort stalled, the White House tried a different tack: it leaked word to the New York Times that all Iraq policymaking was being centralized at the White House under National Security Council (NSC) adviser Condoleezza Rice, a figure almost as reassuring as Rumsfeld is controversial. The leak was a clear shot at Rumsfeld’s war-boss performance, but otherwise the Condi-in-charge move was almost entirely for show. The NSC isn’t set up for operational control of a project as complex as the reconstruction of a nation, and Rice has rarely displayed the muscle needed to keep Rumsfeld, Vice President Dick Cheney and Secretary of State Colin Powell all on the same page. But then Rumsfeld spoiled the ploy. Instead of just keeping quiet and running things as he had before, he greeted the Rice leak with a loud Bronx cheer and suggested to foreign reporters that it wouldn’t change much of anything at all, which of course was true. A White House official, tongue in cheek, explained Rumsfeld’s remarks by saying, “The Secretary’s charm offensive is well known.”

Baroque as it was, that soap opera was merely a warm-up. On Oct. 16 Rumsfeld wrote a memo titled “Global War on Terrorism” that was quickly leaked to reporters. The memo, first reported by USA Today, reads like a report card for the Bush team since 9/11, and the marks aren’t great. “We are having mixed results with al-Qaeda, although we have put considerable pressure on them—nonetheless, a great many remain at large … we lack metrics to know if we are winning or losing the global war on terror. Are we capturing killing or deterring and dissuading more terrorists every day than the madrassas and the radical clerics are recruiting, training and deploying against us? The cost-benefit ratio is against us! Our cost is billions against the terrorist costs of millions … It’s pretty clear that the coalition can win in Afghanistan and Iraq in one way or another, but it will be a long hard slog.”

White House officials argued that Rumsfeld had merely raised issues he had raised before, and to an extent that was true. This was not the first time that Rumsfeld had asked if the government needed to remake itself against a new enemy. But Rumsfeld’s memo—for an Administration that had been touting its achievements overseas relentlessly for months—read like a grim descant of doubt at odds with the more optimistic line peddled almost daily to the public. A Bush aide searched for a silver lining: “If we were smart, we would take advantage of this to concede the obvious and talk about how we’re trying to solve the problem.”

Rumsfeld insisted that he had not leaked the memo himself. But it is widely believed inside the Pentagon that he was content to see it disclosed; the debate is much more about why. One officer explained that Rumsfeld wanted to make it clear that he didn’t really believe his own rose-colored rhetoric. Another said he was reasserting his authority over Iraq policy. But perhaps the savviest explanation is also the simplest. The U.S. is spending close to $500 billion a year on defense, at home and abroad, yet Americans feel only slightly safer. Some Bush hard-liners share Rumsfeld’s fear that the U.S. is going about it the wrong way. “This leak was no accident,” said an official. “It was leaked because they want to provoke the whole discussion about how we fight terror going forward.”

Whatever its next move, the Bush team is determined to keep its conservative flank happy and to capture the 4 million evangelicals that political guru Karl Rove believes sat on the sidelines in 2000. As the Boykin flap unfolded, Christian activists rushed to Boykin’s defense. Evangelical e-mail armies were pressed into service and encouraged to fire in the direction of the White House. After a few days of silence on Boykin, Bush told pool reporters on Air Force One, “He didn’t reflect my opinion.” Rumsfeld would go no further, pleading that the sound on the videotapes of Boykin’s incendiary remarks was too scratchy to be understood. In his dustup with Warner, Rumsfeld went so far as to say it was Boykin who requested a Pentagon probe—perhaps so evangelicals wouldn’t blame the Bush team for going after one of their own. Still, Boykin’s days are numbered. “His job effectiveness is over,” said retired Army General Barry McCaffrey.

As for Rumsfeld, he has been down before and has usually fought his way back to grinning, redoubtable prominence. You can almost hear him writing that memo now, and it would sound a lot like the one leaked last week: “Is our current situation such that, ‘The harder we work, the behinder we get?’ Do we need a new organization? What else should we be considering?”